common-law defenses of the employer. For the purposes of this
debate, it is immaterial to us whether this change is brought about
by a simple extension of the employer's liability, or whether it is
accompanied, as in many of our states, by a system of workman's
compensation. Likewise, it is a consideration extraneous to the
issues of this debate, whether the employer shoulder this risk
himself, whether he insure it in a private insurance company, or
whether he be compelled to insure it in a company managed by the
state. At all events, and under any of these plans, the proposition
of the Affirmative will be maintained, the employer will be deprived
of his defenses at common law, and the employee will recover his
damages regardless of questions of fault.
Assuming then the full burden of proof, the Affirmative propose to
demonstrate that the assumption of risk and the fellow-servant rule
as defined and interpreted by the common law should be abolished,
first, because whatever reasons may have justified these doctrines
in years gone by they have no application to industrial conditions
in our day; and, secondly, because the abolition of these common law
defenses will but place the burden of industrial loss, as in justice
it should be placed, upon the ultimate consumer of the product of
the industry.
Mr. Watson, speaking for the Negative:
The proposed abolition of these two common-law defenses, like every
change of law or any suggested reform, is brought to our attention
by certain existing evils. The advocates of this reform have a
definite proposition in mind and that proposition is definitely and
clearly stated in the question. It is a question in which people in
every walk of life are concerned. Since it is of such widespread
interest, let us lift it from a plane of mere debating tactics, in
which a question of this kind is so often placed, and where a great
deal of time is spent in arguing what the Affirmative or the
Negative may stand for according to the interpretation of the
question, let us lift it from that plane, and consider it as
practical men and women who are interested in the outcome of this
great problem. It is, then, in its larger sense, a legal question
and must be considered from the standpoints of justice and of
expediency.
It is not enough for the Affirmative to point out evils that exist
under these two common-law rules, for there is bound to be some evil
in the administration of all law; so they must further show that
these evils which they have named are inherent in these two laws,
and that the proposed change will remedy the existing evils. Now the
Negative maintain that the evils complained of are not inherent in
these laws, and we believe that the Affirmative plan is not the
proper solution of the problem.
I will show you that these common-law rules are founded on
principles of justice and that their removal would be unjust to the
employer; second that it would discriminate against the smaller
tradesmen, and third that the proposed remedy does not strike at the
root of the evil, since it would affect only a small percentage of
industrial accidents.
CARL SCHURZ ON GENERAL AMNESTY
(A bill being before Congress proposing to restore to leading
Southerners many of the privileges which had been denied them
following the war, Mr. Schurz determined the issue as follows:)
_Mr. President_: When this debate commenced before the holidays, I
refrained from taking part in it, and from expressing my opinions on
some of the provisions of the bill now before us; hoping as I did
that the measure could be passed without difficulty, and that a
great many of those who now labor under political disabilities would
be immediately relieved. This expectation was disappointed. An
amendment to the bill was adopted. It will have to go back to the
House of Representatives now unless by some parliamentary means we
get rid of the amendment, and there being no inducement left to
waive what criticism we might feel inclined to bring forward, we may
consider the whole question open.
I beg leave to say that I am in favor of general, or, as this word
is considered more expressive, universal amnesty, believing, as I
do, that the reasons make it desirable that the amnesty should be
universal. The senator from South Carolina has already given notice
that he will move to strike out the exceptions from the operation of
this act of relief for which the bill provides. If he had not
declared his intention to that effect, I would do so. In any event,
whenever he offers his amendment I shall most heartily support it.
In the course of this debate we have listened to some senators, as
they conjured up before our eyes once more all the horrors of the
Rebellion, the wickedness of its conception, how terrible its
incidents were, and how harrowing its consequences. Sir, I admit it
all; I will not combat the correctness of the picture; and yet if I
differ with the gentlemen who drew it, it is because, had the
conception of the Rebellion been still more wicked, had its
incidents been still more terrible, its consequences still more
harrowing, I could not permit myself to forget that in dealing with
the question now before us we have to deal not alone with the past,
but with the present and future of this republic.
What do we want to accomplish as good citizens and patriots? Do we
mean only to inflict upon the late rebels pain, degradation,
mortification, annoyance, for its own sake; to torture their
feelings without any ulterior purpose? Certainly such a purpose
could not by any possibility animate high-minded men. I presume,
therefore, that those who still favor the continuance of some of the
disabilities imposed by the Fourteenth Amendment do so because they
have some higher object of public usefulness in view, an object of
public usefulness sufficient to justify, in their minds at least,
the denial of rights to others which we ourselves enjoy.
What can those objects of public usefulness be? Let me assume that,
if we differ as to the means to be employed, we are agreed as to the
supreme end and aim to be reached. That end and aim of our endeavors
can be no other than to secure to all the States the blessings of
good and free government and the highest degree of prosperity and
well-being they can attain, and to revive in all citizens of this
republic that love for the Union and its institutions, and that
inspiring consciousness of a common nationality, which, after all,
must bind all Americans together.
What are the best means for the attainment of that end? This, Sir,
as I conceive it, is the only legitimate question we have to decide.
APPENDIX III
A TYPICAL COLLEGE FORENSIC
The forensic which follows is the one which was used by the State
University of Iowa in its debates with the University of Wisconsin and
the University of Minnesota in 1908. In the form in which it appears
here it was given in a home contest a few evenings before the
Inter-State Debate. It is quoted here with the permission of the
Forensic League of the State University of Iowa.
_Resolved_, That American Cities Should Adopt a Commission Form of
Government.
Mr. Clarence Coulter, the first speaker on the Affirmative, said:
It is not my purpose to picture the shame of American cities; that
is well known; but I am to consider only those evils due to the
present form of municipal government, an organization based on the
separation of the powers into the legislative, executive, and
judicial departments. The proper remedy for these evils will be
secured only by adopting a form which concentrates the entire
authority of city government in one definite and responsible body.
It is a significant fact, that during the last quarter of a century,
the tendency in municipal organization has been toward concentration
of powers. Certain of our cities have recognized the wisdom of such
action, but have unwisely attempted to concentrate only the
executive power whereas the real solution lies in concentrating all
governmental authority in one definite and responsible body.
New York City tried such a plan and it has failed; failed because
its separate legislative department has proved an obstruction to
effective action. Consequently, there has been a continual tendency
to deprive the council of all power, until today its only function
is to vote on franchises and issue certain licenses. So evident is
the imperative need of concentrating the legislative and
administrative powers in one body, that there is now a charter
revision committee meeting in New York whose great object is to
consider the advisability of entirely eliminating the separate
council, and creating in its place a small commission possessing
both legislative and administrative authority. Practically the same
condition obtains in the city of Boston.
What is true of New York and Boston is equally true of scores of
other cities. Memphis tried for years to reform her government with
an isolated council. Today she is clamoring at the doors of her
legislature for a commission charter. Within the past two years more
than a dozen states have provided for a commission form of
government, while within the past year more than a dozen cities have
actually thrown away their old forms and assumed the commission
system.
The success of a separate legislative body in state and national
government is the only excuse for its retention in our cities, yet
the failure, for over a century in all its different forms and
variations, proves that such a government is unsuited to them. There
are several important and fundamental characteristics of the city
that demand a different form of government and show conclusively
that there is no need of a separate legislative body. In the first
place, the city is not a sovereign government, but is subordinate to
state and nation. There is no reason for a distinct legislature to
determine the broad matters of policy, for they are determined for
the citizens of the city as well as those of the country, by the
state and national legislatures, in which both the city and country
are represented. In the second place, the work of a city is largely
administrative and of a business character, as my colleagues will
show, and there is no necessity for a separate council to legislate
when a commissioner is better able, as we shall show, to pass the
kind of legislation characteristic of the city.
In the third place, we do not find, as in the state, the necessity
of a large and separate body to represent the various localities.
The city has a large population living in a restricted territory; in
the state it is scattered. The city is unified by means of its rapid
communication and transportation facilities, and its interests are
common. These, Honorable Judges, are some general reasons why there
is no necessity for trying to maintain a separate legislative body
at the expense of efficiency in administration and the fixing of
individual responsibility.
But let us now examine as to wherein this principle of separation
fails to meet modern municipal conditions. In the first place we
find that this system has failed to produce efficiency, because, in
actual practice, it has been impossible to keep the legislative and
administrative branches within their proper spheres of action. To be
sure, such difficulty does not exist in state and national
governments where the work is naturally divided. But in city
government, where the work is of a peculiar kind, where it is
unified in character and is largely administrative and of a business
nature, it has been found impossible to maintain a separation. It is
not at all surprising to find that in some cities, the mayor is the
dominating factor in both legislation and administration. He is the
presiding officer of the council with the deciding vote, and, in
addition, is clothed with the veto power. On the other hand, there
are scores of instances where the council assumes administrative
functions. It names all appointments to office, and it creates and
controls all the departments of city government. Under such
circumstances the administrative department is subordinate to the
council, because its officers can be both appointed and removed by
that body and because it can carry on no work without the council's
authority. Thus there is an inevitable tendency to concentrate the
powers in one of the two branches, yet, at the same time, diffusing
responsibility between them. Such a condition only goes to show that
city government is gradually but surely working its way toward
concentration in one body. But the trouble lies in the fact that the
present system makes possible concentration of power, without a
corresponding concentration of responsibility. From such a condition
have grown two grave and inherent evils. First, it has entirely
eliminated the system of checks and balances, which is a fundamental
doctrine of the division of power. Secondly, it has utterly
destroyed all effective responsibility. It is apparent at once, that
when one branch of the government dominates, the checks and balances
between the departments are immediately lost, and facts bear out
what theory shows to be logically true. The system of checks and
balances failed absolutely in New York, where the mayor is supreme,
and where the city has been plundered of sums estimated at 7 per
cent of the total valuation of real estate. It has failed in St.
Louis, where the council dominated, and where "Boss Butler" paid
that body $250,000 to pass a street railway franchise. Neither did
it work in Philadelphia, which has been plundered of an amount equal
to 10 per cent of her real estate valuation; nor in San Francisco
under the disgraceful regime of Mayor Schmitz. So overwhelming is
the evidence on this point that it is needless to dwell further upon
it.
In the second place, this domination of one branch over the other
has resulted in a lack of responsibility and of co-ordination in
city affairs. These two elements are indispensable where the work to
be performed is of a local and business nature. We find that under
the present system, no matter which branch of government dominates,
there is always a notorious lack of responsibility. If the council
makes a blunder in legislation, it immediately lays the blame upon
the administrative officials, maintaining that it passed the measure
upon recommendation of the administrative branch, or that branch
failed to carry out its policy. If the administrative officials are
neglectful, they shift the blame onto the council, and insist that
the difficulty lies in insufficient legislation. Under such
conditions, the average citizen has no way of telling where the
blame really lies.
At present, there is no attempt at co-ordination between the
legislative, executive, and judicial departments. On the other hand,
there is often open rupture between them. For years before the
commission form of government was adopted in Galveston, there was
open warfare between the legislative and executive departments,
which saddled upon the city a bonded debt of many thousands of
dollars. In our state, there is a municipality in which the two
departments of government are defying each other. Both are
exercising legislative and administrative authority until the
citizens of that place are at a loss to know which is right. This is
admittedly a deplorable state of affairs, yet it is the logical
result of forcing upon the city a form of government entirely
unsuited for its needs. Moreover, this lack of co-ordination and
responsibility has resulted in the confusion of powers and the
creation of needless boards and committees. A recent investigation
in Philadelphia showed that it had four boards with power to tear up
the streets at will, but none to see that they were properly relaid.
Chicago finds herself possessed of eight different tax levying
bodies, while in New York City there are eighty different boards or
individuals who have power to create debt. Is it any wonder that
inefficiency and graft infest such a maze of boards, councils and
committees? We see, then, that the present system of separation of
powers produces inefficiency through a confusion of functions; it
does away completely with the system of checks and balances and
results in utter lack of responsibility and co-ordination of
departments.
Honorable Judges, if we are ever to arrive at a solution of our
municipal problem, we must concentrate municipal authority; we must
co-ordinate departments, eliminate useless boards and committees and
fix absolutely and completely individual responsibility. This, we
propose to do by establishing a commission form of government, where
all governmental authority is vested in one small body of men, who
individually act as the heads of administrative departments, but who
collectively pass the needed legislation. Thus, instead of a council
with restricted powers and divided authority, we have a few men
assuming positions of genuine responsibility, as regards both the
originating and enforcing of laws. My colleagues will show that such
a concentration of powers in one small body is necessary and
desirable, both from the legislative and administrative point of
view.
Such a concentration is desirable, since it is accompanied by a
corresponding concentration of personal responsibility. This is
secured in the commission system. Responsibility in administration
is secured, because each commissioner is at the head of a
department, for the efficient and honest conduct of which he alone
is held personally responsible. Responsibility in legislation is
secured, because, first, the body of legislators is comparatively
small. Second, the very fact that each commissioner possesses
information essential to intelligent action, places upon the
commission itself absolute responsibility. Such a system makes it
impossible to shift responsibility from one branch to the other, and
guarantees to us better and more efficient administration of our
municipal affairs for it eliminates all useless boards and
committees and fixes absolutely and completely individual
responsibility.
Mr. Earl Stewart, the first speaker on the Negative, said:
We wish it understood at the outset that no one deplores the useless
boards and complicated machinery in many of our American cities more
than do the Negative.
Before going a step farther let us get right as to what we mean by a
commission form. The gentlemen state that they are standing for a
concentration of all power in one small body. Honorable Judges, they
are standing for something different. It is possible to concentrate
all authority in one body and yet have the different functions
performed by separately constituted bodies. For example, the cabinet
system of Germany, where all governing power is vested in the
legislative body which in turn delegates all administrative
functions to the cabinet. Thus the legislative body is directly
responsible, having ultimate authority, yet the actual exercise of
power is done by distinct bodies. Now how is it with the commission?
There, not only does one body have ultimate authority, but it
actually conducts administration as well as legislation. Quoting
from Sec. 7 of the Des Moines charter, which is typical of every
commission form charter in this regard, it says: "All legislative,
executive, and judicial functions of the city shall be placed in the
hands of the commissioners who shall exercise those functions." The
Affirmative, then, are standing for fusion of functions, and not
concentration of powers.
The Negative do not defend the evils of present city organization.
The Negative believe that far-reaching reforms must be instituted
before we shall enjoy municipal success. The issue then is, does the
commission form, or do the reforms proposed by the Negative, offer
the more satisfactory solution of our municipal problems?
The Negative propose, first, that the form of organization shall
embody a proper correlation or departments.
In the early council system the functions of the legislative and
executive departments so overlapped that there was continual
conflict of authority. Under the board system the two departments
were almost disconnected, so that the legislative department could
not hold the executive accountable to the will of the people. In
many forms today, as the gentlemen have depicted, the relations
between the departments are such that responsibility cannot be
fixed.
But, Honorable Judges, these instances of failure do not show that
it is impossible to preserve a proper division of functions, for
every conspicuous example of municipal success in the world is based
upon the proper correlation between the legislative and
administrative departments. Municipal success in Europe is an
established fact. There we find the cabinet form. A similar form is
in vogue in Toronto, Canada, which Mayor Coatswain says is most
gratifying to the public. Says Rear Admiral Chadwick: "The city of
Newport, Rhode Island, has now a form of government that awakens the
interest of the citizens, keeps that interest awake, and conducts
its affairs in obedience to the wishes of the majority." Charleston,
S. C., Elmira, New York, Los Angeles, Cal., are but a few of the
typical American cities which have successfully adopted the ordinary
mayor and council form. Says Mayor Rhett, of Charleston: "I am the
executive of a city that has been under a mayor and council for over
one hundred years. It is quite as capable of prompt action on any
matter as any business corporation." The National Municipal League,
composed of such men as Albert Shaw, of New York City, and Professor
Rowe of the University of Pennsylvania, appointed a committee to
formulate a definite program of reform. This committee did not even
consider the abandoning of distinct legislative and administrative
bodies, but, after three years of unremitting effort, presented a
working system, embodying, in the words of the committee itself, the
"essential principle of all successful government," namely, the
proper correlation between the legislative and administrative
departments. That program has left marked traces in the constitution
of Virginia, Alabama, Colorado, New York, Wisconsin, Michigan, and
Delaware.
Proper correlation between departments is best facilitated in the
cabinet form, because all governing power is vested in the
legislative body, which in turn delegates all administrative
functions to the cabinet. However, many cities have properly
correlated mayor and council by utilizing the model charter of the
National Municipal League. The Negative, therefore, is here to
promulgate no specific form for all American cities: conditions in
Boston may require a different mechanism from that in San Francisco,
but whatever form, the underlying principle of a proper division of
functions must be embodied. The Affirmative must admit that proper
correlation of departments has brought about municipal success, as
far as mere organization can do so, yet, notwithstanding that, after
fifteen years of misrule under the commission form in Sacramento the
freeholders by unanimous choice again adopted distinct legislative
and administrative bodies; and that the commission form has lately
operated but a few years in a few small cities, amid aroused civic
interest. The Affirmative would abolish at one blow the working
principle of successful city organization in France, Germany,
England, Canada, and unnumbered cities in the United States.
In the second place, evils in our cities are due to bad social and
economic conditions. Harrisburg, Pa., was notoriously corrupt. A
spirit of reform aroused the citizens, and Harrisburg stands today
as a remarkable example of efficient government, yet the form of
organization has been unchanged.